Matter of Cox

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[*1] Matter of Cox 2015 NY Slip Op 50550(U) Decided on March 27, 2015 Supreme Court, Kings County King, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 27, 2015
Supreme Court, Kings County

In the Matter of the Application of Russell Cox, Petitioner, For the Appointment of a Guardian of the Personal Needs and Property Management of

against

Willian Monica Cox, An Alleged Incapacitated Person, Respondent.



11991/2008
Kathy J. King, J.

Petitioner, Russell Cox ("Russell"), commenced the within guardianship proceeding by Order to Show Cause, pursuant to Article 81 of the Mental Hygiene Law ("MHL"), seeking the appointment of both a temporary and permanent personal needs and property management guardian on behalf of his mother, Willian Monica Cox, the alleged Incapacitated Person ("AIP"). Petitioner nominated himself to be guardian. In conjunction with his petition, a subsequent Order to Show Cause seeking to stay the sale of the AIP's residence at 8902 Avenue A, Brooklyn, NY was filed. Bernadette Cox ("Bernadette"), the AIP's daughter, opposes the



petition and cross-moves[FN1] to be the appointed guardian, in the event the court appoints a guardian. Both petitioner and cross-petitioner were represented by counsel.

The court, upon signing the Order to Show Cause, appointed Stephen Donaldson, Esq. as Court Evaluator, and denied the application for the appointment of a temporary guardian. Thereafter, the court granted petitioner's application for a stay of the sale of the AIP's residence. A hearing was held on May 20, June 16, June 25, July 8, and July 17, 2014, at the conclusion of which, the court reserved decision on the petition and cross-petition.



BACKGROUND

The AIP is a ninety-five years old widow diagnosed with advanced dementia and requires 24 hours of skilled medical care. She has five children, Russell, Bernadette, Donald, Michael, and Cuthbert. A sixth child, Claudette, predeceased the AIP. Presently, the AIP resides with her two sons, Russell and Michael at 8902 Avenue A, Brooklyn, NY, a property she co-owns with Bernadette, as tenants in common.

Bernadette and Claudette were appointed agents by the AIP pursuant to a durable power of attorney dated January 4, 2001. Bernadette was also the AIP's agent pursuant to a healthcare proxy dated August 21, 2010.

Russell alleges that Bernadette has been using the durable power of attorney to effect the wholesale conversion of the AIP's assets for her personal enrichment. Specifically, he seeks court intervention because the sale of the AIP's residence is imminent since Bernadette, as attorney in fact for the AIP, entered into a contract to sell the AIP's residence. Without court intervention, he asserts that such a sale will hasten the AIP's decline because Bernadette does not have a cogent plan to provide for the AIP's care. He also claims that Bernadette will pocket the proceeds of the sale and use it for her own personal benefit.

Bernadette opposes the petition on the basis that the 2001 durable power of attorney and 2010 healthcare proxy are sufficient to permit her to manage the AIP's affairs. However, Bernadette cross-moves to be appointed guardian in the event the petition is granted.

Based on an assessment of the AIP's medical condition and financial circumstances, Bernadette asserts that she has been forced to put the house on the market to pay for the AIP's care. According to Bernadette, by commencing the guardianship proceeding, Russell intends to stop the sale of the house so that he can continue to reside in the house or, alternatively, in the event of the AIP's demise, he can inherit an interest in the house pursuant to the AIP's will executed in 2003.



PETITIONER'S CASE

The petitioner, Russell Cox, testified on his direct case and produced his brothers, Michael Cox and Cuthbert Cox, in support of the petition.



Testimony of Russell Cox

Russell testified that he is currently employed as a sales manager and previously attended nursing school at Boston College of Nursing for three years but did not complete the program. H testified that he has resided in one of three apartments in the AIP's home for the last sixteen years. The AIP resides on the second floor of the building, and his brother, Michael, resides in [*2]the remaining apartment. According to Russell, the house, has always been considered a "family" home.

Russell further testified that the AIP's assets presently consists of her primary residence, a 44-acre property in Grenada that she co-owns with her children and bank accounts at Capitol One and Chase, respectively. He testified that the AIP receives social security, a pension from her employment as a nurse's aide, her husband's pension, and rental income. Russell also stated that the AIP had tens of thousands of dollars' worth of jewelry that the cross-petitioner has either disposed of or kept for her own personal use.

Despite the AIP's current financial circumstances, petitioner acknowledges that he does not pay anything towards the expenses of the AIP's household and "[he] would not give Bernadette a nickel" because she misappropriated the AIP's money for her own personal benefit.

Russell acknowledged that his sister travels from Long Island to visit the AIP, pays the AIP's health care aides, and most recently has arranged for hospice care for the past six to seven months on the weekends. Petitioner stated, however, that cross-petitioner does not provide any physical care to the AIP. Petitioner testified that the AIP's home attendant of many years, Viola, attends to the AIP's activities of daily living from Monday to Friday and he supplements the care provided by Viola on the weekends based on his training as a nurse.



On cross-examination, Russell admitted that he was convicted of crime and has been arrested on more than one occasion. Russell acknowledged that he has not contributed money to care for the AIP's household, but has provided food and general supplies around the house. He acknowledged that regular bills are handled by Bernadette who picks them up when she visits. He admitted that he has a child support judgment for approximately $49,155 and that his driver's license is suspended. He cannot remember whether he filed taxes in prior years.

Russell testified that the AIP should remain at home because she has thrived in her home environment. Russell indicated that he, along with his brothers, Michael and Donald, could maintain the AIP in her home of thirty six years by pooling together their funds and increasing the monthly rent for the basement apartment, presently occupied by Viola, to $1,200 once Viola vacates.

Russell asserts that he should be appointed guardian because he is the AIP's son, has medical training, and is best suited to provide for the AIP's interests.



Testimony of Michael Cox

Michael Cox is the brother of both petitioner and cross-petitioner and testified that he has resided in the AIP's residence for approximately two years. He is retired and receives income consisting of a New York State pension and social security. He further states that he currently pays $550 monthly to Viola, the AIP's live-in healthcare aide. He pays Viola directly since he is concerned about how money is spent by Bernadette. He also pays for the cable, phone and internet bill. However, he conceded that he uses the internet in the AIP's home primarily to pursue his interest in horse racing.



Testimony of Cuthbert Cox

Cuthbert Cox testified that he is the oldest son of the AIP and resides in Richmond, [*3]Virginia. He visits the AIP on a regular basis. Cuthbert testified that he is retired and receives two pensions in addition to social security. Cuthbert further stated that he is currently employed as a part-time school bus driver.

Cuthbert testified that after Claudette's death, cross-petitioner assumed control of the AIP's finances. Cuthbert stated that once Bernadette took over managing the AIP's finances he developed concerns. Cuthbert testified that unlike his sister, Claudette, who provided an annual printout, Bernadette did not provide full disclosure and her expenditures did not reconcile. On cross-examination, Cuthbert explained that Bernadette's annual printout contained discrepancies in monthly payments that she was unable to explain. Despite these concerns, Cuthbert conceded on cross-examination that Bernadette does an excellent job in coordinating the care of the AIP.



CROSS-PETITIONER'S CASE

In support of the cross-petition, Bernadette testified and produced her brother, Donald Cox. Additionally, Dr. Tien Tsai Tsai, a treating physician of the AIP, testified, via telephone.



Testimony of Bernadette Cox

Bernadette testified that she resides in Long Island, New York and visits the AIP on a weekly basis. She also testified that she has been a registered nurse since January 1976. In addition, she has been employed as supervisor of the intake and case management departments for the Visiting Nurse Association of Long Island for the past four years.



Bernadette testified that in 1999 her father, Percival Cox, executed a durable power of attorney appointing her and her sister, Claudette, as his agents. In 2001, their mother, Willian Monica Cox, also executed a durable power of attorney appointing Bernadette and Claudette her agents.

Bernadette testified that Percival Cox passed away in November 2000 after a long illness, leaving about $60,000. According to Bernadette, by 2003 or 2004 the AIP's investments, which included any funds left over from the AIP's husband, had been fully depleted in order to address her own financial needs. Realizing that the AIP's funds were rapidly dwindling, Bernadette states that she and her siblings met and agreed that Russell would pay $400 monthly rent and Viola's rent would be increased to provide additional income to the AIP. However, Bernadette testified that, to date, Russell has not paid "a dime of rent."

In 2003, with the knowledge of her siblings, Bernadette testified that the AIP put her name on the deed to the house so that she could have access to the equity in the house to care for the AIP. She testified that the AIP added her name to the deed because she felt that Russell, Michael, and Donald were not in a position to manage her medical care and financial affairs. That same year, Bernadette testified that the AIP took out a $200,000 home equity line of credit against the house to perform renovations and maintenance. Cross-petitioner also testified that by 2009, there was a balance of approximately $40,000 remaining on the home line of equity. Bernadette testified that by 2010 the AIP's home equity line of credit had been fully cashed out. In 2010, her sister, Claudette also passed away. She testified that since her sister's death she has been solely responsible for managing the AIP's medical care and remaining assets. She indicated that by 2013 a $100,000 deficit had been created regarding the AIP's household finances. Bernadette testified that she paid the deficit with assistance from her brother-in-law and nephew and by borrowing money from her life insurance policy, retirement account, and credit cards. No [*4]monetary assistance was received from her siblings towards paying off the deficit. She further testified that the only time she was able to defray expenses was upon the sale of the AIP's timeshare in Aruba. When advised that the proceeds of sale would be expended on the AIP's care and not shared among the siblings, Bernadette stated that she was physically attacked by Russell.

Bernadette testified that the increased cost of care, coupled with the impending cessation of the hospice program and the inability to pay for the AIP's care, resulted in a family meeting wherein she and her siblings agreed that the AIP's residence would be sold. Bernadette testified that a broker was engaged, a potential purchaser had been identified, and a contract of sale was negotiated, however, that sale was not consummated because the issue of sharing the proceeds of sale among the siblings arose again.

On cross-examination, Bernadette testified that she is a joint account holder with the AIP on checking accounts at Capitol One Bank and Chase Bank, respectively. Bernadette testified that the AIP's monthly income consists of social security and pension benefits, which total $2,100 to $2,200 but the AIP's monthly expenses are around $4,000 to $5,000 leaving the AIP with a $2,800 monthly deficit. She explained that she supplements the AIP's income with her own funds to meet monthly obligations. Bernadette denied ever using the AIP's money for her own personal expenses but could not account for a number of expenditures. Bernadette stated that "I never nickeled and dimed this account. I just did what I had to do. I had receipts and stuff, but never sat down and kept a log for every penny that I spent on my mother or that I spent on myself." She also admitted that she sold half of the AIP's jewelry in her possession to pay the AIP's expenses and is holding onto the other half for when the AIP passes away.

Bernadette described the AIP as bed bound, contracted, nonverbal and unresponsive, and unable to do anything. She indicated that the AIP has two, stage 4, decubitus ulcers that require regular packing and dressing. While at home the AIP's ulcers became infected and in November 2010 necessitated her hospitalization for about ten days. Thereafter, she was discharged to a skilled nursing facility for wound care, where the AIP remained for a period of three months. During this period, Bernadette testified that Viola was paid to go to the nursing home everyday except weekends to provide care for the AIP. Viola continued to provide care upon the AIP's discharge home. Additionally, Bernadette indicated that she arranged for Metropolitan Jewish Hospice Program to provide weekend hospice care for the AIP to defray her out of pocket costs. She acknowledged that Russell assists with the changing of the outer dressing of the wounds, but due to the specialized nature of the care required he cannot change the entire wound. Bernadette explained that hospice had advised her that its services will be discontinued because the AIP had been stabilized. Bernadette further explained that the ulcers are at a stage that requires twenty-four hours skilled care, and that she cannot continue to afford to pay for this level of care.



Due to the ongoing cost of providing high quality home health care for the AIP, Bernadette testified that her savings have been exhausted. According to Bernadette, in 2013 Michael commenced contributing $500 per month and increased his contribution to $550 per month in 2014. While Cuthbert contributed $1,500 in 2013 towards the AIP's expenses, since that time he has not contributed. She went on to state that in October 2013 the mortgage increased from $500 to $1,350 per month.

Bernadette argues that Russell is unfit to serve as guardian because he is irresponsible and incapable of providing for the AIP's complex needs. She specifically states that Russell does not financially contribute to the AIP's expenses, has an outstanding warrant, is in violation of one or more child support orders, has never taken the AIP to doctor appointments, and does not concern himself in the AIP's welfare.



Testimony of Donald Cox

Donald Cox testified that at one time he resided in the AIP's residence in Brooklyn, but for the past twenty years he has lived in Connecticut. He indicated that he participated in family meetings every couple of months to discuss the AIP's budget and received a budget for the AIP's expenses from his sister, Claudette, periodically. Donald testified that family meetings have been held two or three times a year to discuss the AIP's health and expenses. During one of their recent family meetings he and his siblings had discussions about the AIP's income, monthly expenses, costs of utilities, home care, and food. Pursuant to those discussions, Donald testified it was agreed that all siblings had to help out to pay the AIP's expenses. Donald states that he and Russell have not monetarily contributed to the AIP's care, but Michael, Claudette and Bernadette have monetarily contributed. Donald went on to state that cross-petitioner covered whatever the difference was between the AIP's income and expenses.

Donald testified that he and his siblings are well aware of Bernadette's struggle to cover the AIP's monthly expenses. He acknowledged that due to the AIP's financial crisis, Bernadette has sold some of the AIP's assets to pay for monthly expenses. He specifically recalls that the AIP's timeshare was sold pursuant to a family decision for approximately $5,000 or $6,000 so that the AIP's bills for that month could be paid.

Donald testified that he is aware of the proposal to sell the AIP's residence. Donald states that all of his siblings were initially involved in getting the house prepared to be placed on the market and they had a family meeting to discuss the sale of the house. Donald testified that Russell and Michael disagreed with the proposal to sell the AIP's residence because of the proposed distribution of the proceeds from the sale and the potential effect on their right to inherit under the AIP's will.

Donald opined that Bernadette was correct in seeking to sell the AIP's assets to ensure that the AIP's expenses are paid. He indicated that Bernadette should be appointed guardian because Bernadette and his deceased sister, Claudette, have been essentially filling the role of a guardian for the AIP for the last twelve years. Despite the recent family fighting over money, Donald states that Bernadette has always put the AIP's best interest first and has done a great job.



Testimony of Tien Tsai Tsai, M.D.

Dr. Tsai Tsai, the AIP's treating physician at Metropolitan Hospice Care, testified that he visited the AIP at her home in Brooklyn to perform a hospice evaluation. He testified that the AIP is in the end-stage of dementia, not getting better, and like a "baby" requiring hospice level care. Dr. Tsai Tsai explained that the AIP's health is declining due to senile dementia and she is totally dependent and bed bound. According to Dr. Tsai Tsai, the AIP is a good candidate for a skilled nursing home environment and would benefit from receiving 24 hours of skilled medical care.



The Court Evaluator's Report

The Court Evaluator, Stephen Donaldson, Esq., had a family meeting with petitioner, cross-petitioner, and their three brothers at the home of the AIP. During his visit to the home, he also observed the AIP in her bedroom. He also reviewed the following documents: Dr. Barrie Raik's Medical Evaluation dated November 1, 2011; list of the AIP's assets, which included the AIP's house, known bank accounts, and income; durable power of attorney dated January 4, 2001; and last will and testament executed by the AIP in 2003.

Based on his investigation, the Court Evaluator indicated that the AIP is bedridden, non-verbal, and uncommunicative. She also requires oxygen when her breathing becomes labored. He found that the AIP suffers from dementia that continues to progress.

The Court Evaluator testified that the AIP's assets consist of her monthly income of roughly $2,100 and her home, which she co-owns with Bernadette. The AIP executed a durable power of attorney in 2001, wherein she appointed cross-petitioner and Claudette as her agents. The AIP further executed a will in 2003, in which she devises her property in equal shares to her living children.

The Court Evaluator states that the parties have competing positions. Bernadette and Donald take the position that the house should be sold to continue to afford care for their mother. Russell, Michael, and Cuthbert contend that because their mother has done better living at home, compared to being in a hospital, the house should not be sold. The Court Evaluator concluded that none of the AIP's children are financially dependent on her, but her sons, Russell and Michael, rely on the family home for a place to reside.

The Court Evaluator recommended that the AIP's durable power of attorney be replaced with a court-appointed guardian, which would provide greater accountability for the AIP's assets, and that cross-petitioner, Bernadette Cox, be appointed guardian of the personal needs and property management for the AIP.

DISCUSSION

The medical condition of Willian Monica Cox is undisputed. The record establishes that she has advanced dementia, is bedridden with two, stage 4, decubitus ulcers, and is non-verbal and unable to communicate. Both petitioner and cross-petitioner concur that as a result of the AIP's medical condition, the AIP requires 24 hour care and supervision. The Court Evaluator's report confirms the AIP's condition and the level of care necessitated by the AIP.

Based on the record and the testimony adduced at the hearing, the Court finds by clear and convincing evidence that Willian Monica Cox is an Incapacitated Person, who is unable to provide for her personal needs and property management, and cannot adequately understand and appreciate the nature and extent of such inability. In reaching this determination, the court considered the functional level and functional limitations of the AIP. Mental Hygiene Law § 81.02 (a).

In determining the necessity for the appointment of a guardian, however, the Court must consider the report of the court evaluator (Mental Hygiene Law § 81.02[a] ) and the "sufficiency and reliability of available resources" (Mental Hygiene Law § 81.02[a][2]) which may be available to satisfy the AIP's personal needs and property management without the need for a guardian. Mental Hygiene Law § 81.03 (e) defines "available resources" as powers of attorney, health care proxies "

While the incapacity of Willian Monica Cox is undisputed, Bernadette contends that the appointment of a guardian is unnecessary due to the durable power of attorney and health care proxy executed by the AIP, both of which designate, Bernadette, as agent. She contends that these [*5]advance directives are sufficient to provide for the personal needs and property management of the AIP.

In the case at bar, the report of the Court Evaluator found that Willian Monica Cox's condition will not improve and is likely to become more severe in the future. The Court Evaluator confirmed that the AIP's monthly expenses, consisting largely of medical related bills, exceed her monthly income. Significantly, the Court Evaluator found that the durable power of attorney did not adequately provide for the AIP because of the inherent conflict of interest existing between petitioner, cross-petitioner and their siblings regarding the disposition of the AIP's house. Russell disagreed with Bernadette's plan to sell the house since he distrusted her, as agent for the AIP, managing the proceeds of any sale. On the other hand, the Court Evaluator, found that Bernadette was skeptical of Russell's motivations in commencing the guardianship which has prevented the sale of the house and permitted him to maintain his right to occupy the house during the lifetime of the AIP, and at the same time, preserve any potential future interest he may have in the property.

In addition to the Court Evaluator's report, the court's independent assessment of the AIP's affairs under the durable power of attorney establishes that it was insufficient to protect the AIP's best interests. Admittedly, Bernadette acknowledges that she comingled her personal funds with the AIP's assets by depositing her personal funds into the joint bank account she held with the AIP. As a result of comingling her personal funds with the AIP's assets, Bernadette was unable to distinguish what funds belong to the AIP and what funds belong to her. Additionally, the documentary evidence produced by petitioner shows that Bernadette made cash withdrawals and various expenditures from the AIP's accounts for personal items such as pharmaceuticals, clothing, groceries and fast food. While these transactions may not have amounted to misappropriation, as petitioner asserts, the court is concerned that Bernadette could not properly account for the assets that she managed on behalf of the AIP.

It is well settled that a power of attorney creates a fiduciary relationship between principal and agent. See, e.g., Matter of Salvation Army (Ferrara), 7 NY3d 244, 819 N.Y.S.2d 215 (2006); Semmler v. Naples, 166 AD2d 751, 752 (3d Dept. 1990), appeal dismissed 77 NY2d 936; Moglia v. Moglia, 144 AD2d 347 (2d Dept. 1988); Matter of Roth, 283 AD2d 504, 724 N.Y.S.2d 476 [2nd Dept.2001]; Mantella v. Mantella, 268 AD2d 852, 701 N.Y.S.2d 715 [3rd Dept.2000]; Guardianship of Kent, 188 Misc 2d 509, 729 N.Y.S.2d 352 [Sup. Court, Dutchess County, 2001]). [A fiduciary's] duty, as far as it relates to [a] [guardianship] proceeding, includes keeping the IP's property separate and accounting for it when called upon to do so (Guardianship of Kent, supra.; In re Garson, 17 AD3d 243 (1st Dept. 2005); Matter of Guardianship of Kent, 188 Misc 2d 509 (Sup. Ct. Dutchess Co. 2001); see also Restatement (Third) of Agency § 8.12.



The Court notes that Bernadette failed to provide any form of accounting for the disposition of the AIP's assets, thus indicating a failure on the part of cross-petitioner to "keep a record of all receipts, disbursements, and transactions entered into by the agent ..." General Obligations Law § 5—1505(2)(a)(3). Thus, the Court finds that cross-petitioner violated her fiduciary duty in failing to account for all the transactions from the AIP's accounts as of the date she assumed sole responsibility for the management of the AIP's finances. As a result, the AIP's durable power of attorney, dated January 4, 2001 is revoked. General Obligations Law 5-1510 (2) (f). See also Mental Hygiene Law 81.29(d).

Although every adult is presumed competent to appoint a health care agent (see Public Health Law § 2981[1] [b], where there is evidence of mental defect that presumption is rebutted. Here, Bernadette has failed to sustain her burden of proof regarding the AIP's mental capacity to execute the August 21, 2010 healthcare proxy. The record establishes that the AIP was diagnosed with dementia in 2008 which progressively worsened, and despite Bernadette's testimony that a healthcare proxy existed prior to 2010, no documentary evidence was proffered to that effect. Accordingly, the healthcare proxy, dated August 21, 2010 is vacated.

The court finds that the appointment of a guardian is necessary to protect the best interests of the AIP under Article 81 of the Mental Hygiene Law based on the nullification of both the durable power of attorney and healthcare proxy, combined with report of the Court Evaluator.

The court is now presented with the issue of appointing a guardian pursuant to Mental Hygiene Law § 81.19 (d). In making its determination the court must consider the following factors:

First, the court must consider the nomination of persons to act on behalf of the subject individual considering execution of powers of attorneys, health care proxies, or other like documents. In this regard, Bernadette was the designated agent under both advance directives executed by Willian Monica Cox. While revocation of the durable power of attorney by this court is based on Bernadette's failure to account, the Court finds that her actions and omissions were not willful, intentional, or harmful to the AIP. Similarly, while the health care proxy was not valid, the record, shows that Bernadette has consistently tended to the AIP and her complex medical needs, without regard to cost. Additionally, Bernadette, Claudette, and Cuthbert Cox, were designated as co-agents and stand-by agents, respectively by the AIP to act on her behalf. There was no showing that the AIP ever contemplated Russell acting on her behalf.

Second, the court should consider the social relationship, if any, between the incapacitated person and the person proposed as guardian, and the social relationship between the incapacitated person and other persons concerned with the welfare of the incapacitated person. While the record does not indicate the nature and extent of the AIP's social relationships with any of her children, including Russell, the court infers that Bernadette had a close relationship with the AIP since she was appointed to act on the AIP's behalf prior to her incapacity.

Third, the court should consider the care and services being provided to the incapacitated person at the time of the proceeding. Bernadette has ensured that the AIP has on-going care consistent with the AIP's needs as they evolved over time, which initially began with 24 hour care and has now expanded to include hospice care. The record also shows that Bernadette has borne the lion's share of the AIP's health care costs to her financial detriment. By contrast, there is no showing that Russell provided anything more than supplemental weekend care to the AIP. Significantly, the record establishes that Russell, along with his brother maintains a home environment that included gambling and carousing, which the court finds is incompatible with providing care for a geriatric patient.

Fourth, the court should consider the powers which the guardian will exercise as requested in the petition and cross-petition. The court notes that while Russell appears to be well intended, the record shows that he has an inability to objectively assess the AIP's circumstances in order to [*6]execute any of the powers that could be granted to a guardian under the Mental Hygiene Law. By contrast, Bernadette has demonstrated that she would be fully capable of exercising any of the powers that could be granted to a guardian under the Mental Hygiene Law.

Fifth, the court should consider the educational, professional and business experience relevant to the nature of the services sought to be provided. Russell studied nursing for three years at Boston College, but did not complete the degree program. Bernadette, on the other hand, is a licensed Registered Nurse who has 38 years cumulative experience in the profession. She presently works as a Perinatal/Pediatric Nursing Supervisor. She has also worked as a Nurse Manager in home health care and a Nursing Supervisor at the Visiting Nurse Association of Long Island, Inc.



The sixth factor to be considered is the nature of the financial resources involved; and seventh the unique requirements of the incapacitated person. The record shows that the AIP's care is extremely expensive and the responsibility for those expenses have fallen on Bernadette and one of her brothers', at best. To address the shortfall between income and expenses, Bernadette proposes a plan to sell the house to generate additional resources to provide for the AIP's care. Russell's plan to rent the basement apartment does not adequately address the AIP's needs because the proposed rental income of $1200 is only a fraction of the AIP's total monthly expenses, which include health care costs. Additionally, in light of the AIP's recurring deficit and increased health care needs, he fails to provide a reasonable explanation why he has not paid his agreed upon monthly contribution to assist with the AIP's expenses.

The final factor to be considered is the existence of any conflict of interest between the person proposed as guardian and the incapacitated person. In the case at bar, the potential conflict of interest is significant. Based on all of the evidence adduced at the hearing, it appears that the proposed sale of the house is the AIP's only feasible option to finance her care. The court cannot overlook the fact that a sale of the AIP's home may negatively impact Russell since he will be forced to relocate from his home of sixteen years. Indeed, the court notes that Russell's self-interest may have served as the catalyst for initiating the within guardianship proceeding.

Accordingly, based on the court's assessment of the aforementioned, the court finds that Bernadette Cox is best suited to undertake the role of guardian and appoints her as guardian of the person and property of Willian Monica Cox pursuant to Mental Hygiene Law § 81.19 (d).

In an Article 81 proceeding, the court's paramount concern is the best interest of the incapacitated person. (See, Seth Rubenstein P.C. v Ganea, 41 AD3d 54 [2d Dept 2007]) This determination necessarily involves a judgment upon the facts and lies in the Court's discretion. (Matter of VonBulow, 63 NY2d 221 [1984]; See, In re Kathleen FF, 6 AD3d 1035 [3d Dept 2004]; In re G.W.C., 4 Misc 3d 1004A [2004]) In the case at bar, the court finds that the allegations set forth in the petition are largely unsubstantiated and demonstrate that Russell, in large measure, is out of touch with the realities of the AIP's circumstance. Although at one time the AIP owned a substantial amount of jewelry, and was the beneficiary of the proceeds of sale of investment property she co-owned with her husband, the AIP's health care costs have substantially depleted some, if not all, of these assets. Additionally, Russell's assertion that the AIP receives a monthly pension from her husband is simply not true. On the other hand, the court finds that Bernadette's overall testimony in support of her cross-petition is credible. Bernadette has demonstrated that she is ready, willing [*7]and able to make the necessary decisions to ensure that Willian Monica Cox is appropriately provided for in her twilight years, and understands that this role necessarily may not permit her to be her "brother's keeper."

Accordingly, based on the foregoing, it is hereby,

ORDERED, that the durable power of attorney, dated January 4, 2001 is revoked, and it is further

ORDERED, that the health care proxy, dated August 21, 2010 is vacated, and it is further

ORDERED, that the petition, dated February 12, 2014, is granted to the extent that the Court finds that Willian Monica Cox is an Incapacitated Person within Article 81 of the Mental Hygiene Law, and denied in all other respects; and it is further

ORDERED, that the cross-petition, dated April 3, 2014, is granted to the extent that Bernadette Cox is appointed personal needs and property management guardian for Willian Monica Cox; and it is further

ORDERED, that the temporary restraining order, dated April 9, 2014, preventing the selling, conveying, transferring, gifting, or otherwise disposing of any real or personal property of Willian Monica Cox is vacated forthwith.

Settle Order and Judgment within 15 days after the date hereof.

This constitutes the Decision and Order of the Court.



ENTER

_______________________________HON. KATHY J. KINGJ.S.C.

Footnotes

Footnote 1: The cross-motion is deemed to be a cross-petition since the court must consider whether Bernadette Cox should be appointed guardian of the personal needs and property management for Willian Monica Cox pursuant to MHL 81.19 (d).



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